JUDGMENT
Shiv Kumar Sharma, J.
1. The prayer of the petitioner in the instant writ petition is as under: –
“(i) quash and set aside the Order dated 10.11.2004 passed by respondent rejecting the nomination form of the petitioner;
(ii) direct the respondent to allow the petitioner to contest the municipal election in Ward No. 30, Beawer to be held on 24.11.2004 and
(iii) pass such other Orders which may be in the interest of justice and for preventing miscarriage of justice in this case and which may be deemed just and proper in the particular circumstances of this case.”
2. Brief re ‘sume’ of the case is that after the Municipal Election in the year 2004 was announced the petitioner submitted his nomination form on November 8, 2004. In the affidavit annexed with the nomination-form the petitioner clearly stated that the cognizance under Sections 147, 148, 325, 365, 120B and 384 IPC in FIR No. 114/1996 registered with Police Station Kalu District Pali was taken against him and the charge had been framed. The Returning Officer thereupon passed an Order dated November 10, 2004 to the effect that under section 26(i-b) of the Rajasthan Municipalities Act, 1959 (for short ‘1959 Act’) the nomination papers of the petitioner were liable to be rejected. It is against this Order that the petitioner has invoked the powers of this Court under Articles 226 of the Constitution of India.
3. I have heard learned counsel and carefully scanned the material on record.
4. A look at section 26(i-b) of the 1959 Act demonstrates that a person shall be disqualified for being chosen as a member of a board who is under trial in the competent court which has taken cognizance of the offence and framed charges against him of any offence punishable with imprisonment for five years or more.
5. It is contended by learned counsel for the petitioner that Section 26 (i-b) of 1959 Act being a disqualifying clause would have been given strict interpretation. According to learned counsel the Legislature while providing 1959 Act was not oblivious to the scheme of punishment provided under various sections of the Indian Penal Code and had it been the intention of framers of Section 26(i-b), which was brought by amendment vide Rajasthan Act No. 22 of 2002 dated July 22, 2000, the Legislature would have definitely used the expression “any offence punishable with imprisonment upto 5 years or more”. However, the omission of the word “upto” is not oversight but is deliberate and indicates that the Legislature only intended to disqualify those persons who have been charged with offences punishable with minimum 5 years or more of punishment. In such circumstances the nomination form of the petitioner could not have been rejected. Learned counsel invited my attention to Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216.
6. 1 have given my anxious consideration to the contentions raised. I find that their Lordships of the Supreme Court in Election Commission of India v. Ashok Kumar (supra), laid down five parameters in para 32 of the judgment thus:- ,
“1 If an election, (the term election being widely interpreted so as , to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2 Any decision sought and rendered will not amount to “calling in question and election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3 Subject to the above, the action taken or Orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4 Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
5 The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.”
7. It is only when the statutory body acts malafideiy or exercises arbitrary powers or statutory body being shown to have acted in breach of iaw, the Orders of statutory body in Election matters are open to judicial review. In the case on hand the impugned Orders appears to have been passed looking to the fact that punishment for a term of more than five years can be imposed under section 325 IPC. Since the petitioner can avail alternative remedy by filing election petition, I do not find any good reason to interfere with the impugned Order.
8. In Tekchand v. Bhanwarlal, 1956 RLW 297, it was indicated that the High Court will be reluctant to hear the election disputes in writ when other alternative remedy is made available under 1959 Act by way or election petition.
9. For these reasons, I find no merit in the instant writ petition and the same stands dismissed summarily. I may, however, make it clear that anything said in this Order shall not affect prejudicially the reasons and grounds raised herein for the decision of election petition, which may be filed, and the same shall be decided unobsessed by any observation made herein.